Texas judge declares CDC eviction bar unlawful

 

Terkel v. Centers for Disease Control 

The considerations discussed in the governing cases point to the same conclusion:

the CDC order exceeds the power granted to the federal government to “regulate Commerce . . . among the several States” and to “make all Laws which shall be necessary and proper for carrying into Execution” that power. U.S. Const. art. I, § 8. The challenged order is therefore held unlawful as “contrary to constitutional . . . power.” 5 U.S.C. § 706(2)(B).

Real estate is inherently local. Residential buildings do not move across state 

lines. And eviction is fundamentally the vindication of the property owner’s possessory interest.

J. Campbell Barker, D.J., EDTX, Case 6:20-cv-00564-JCB

This lawsuit presents the question whether the federal government has authority to order property owners not to evict specified tenants. Plaintiffs argue that this authority is not among the limited powers granted to the federal government in Article I of the Constitution, and thus the decision whether to enact an eviction moratorium rests with a given State. Disagreeing, the federal government argues that a na-

tionwide eviction moratorium is within Article I’s grant of federal authority to regulate commerce among the States.

But while “[t]he States have broad authority to enact legislation for the public good—what we have often called a ‘police power’”—“[t]he Federal Government, by contrast, has no such authority[.]” Bond v. United States, 572 U.S. 844, 854 (2014). The question here is whether a nationwide moratorium

on evicting specified tenants is within the limited powers that our Constitution grants to the federal government, namely, its authority to legislate as necessary and proper to regulate commerce among the several States.

The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium. It did not do so during the deadly Spanish Flu pandemic. Hr’g Tr. (Doc. 21) at 52:3-8 (government’s representation). Nor did it invoke such a power during the exigencies of the Great Depression. Id.